Iraq War resisters in Canada
Their refusal meant that they faced the possibility of punishment in the United States according to Article 85 of the US Uniform Code of Military Justice.
In that era, most of those draft dodgers had simply applied for landed immigrant status once in Canada, which opposed its southern neighbour's military adventures in Vietnam.
Pursuant to the Treaty between the Government of Canada and the Government of the United States of America on Mutual Legal Assistance in Criminal Matters, US authorities can request Canadian authorities to identify, locate, and take into custody US nationals who have committed a crime that carries a possible sentence of more than a year,[8] and subsequently extradite the target back to the US, as per the Extradition Treaty Between the United States of America and Canada.
[9] However, the US government must promise that those extradited will not receive the death penalty, in accordance with the Supreme Court of Canada ruling in United States v. Burns.
[11] On the other hand, if the refugee claim is granted, the individual or family is permitted to remain in Canada, eventually moving on to Permanent Resident status and, if the person wishes, to Canadian citizenship.
The case of Iraq War resisters clearly became more than a legal issue when Canadian government lawyers entered the situation and presented arguments to the Immigration and Refugee Board adjudicator just prior to the precedent-setting hearing of Iraq war resister Jeremy Hinzman in November 2004.
[13] Hinzman's lawyer Jeffry House pointed out[20] a precedent set by federal court Judge Arthur Stone in 1995 who approved refugee status for a deserter from Iraq's 1990 invasion of Kuwait.
[15][22] Justice Anne L. Mactavish presided over the Federal Court case of Hinzman v. Canada, and released her ruling on 31 March 2006 upholding the decision of the Immigration and Refugee Board.
Similarly, such an individual cannot be held criminally responsible for fighting in support of an illegal war, assuming that his or her personal war-time conduct is otherwise proper.
[29][30] "In the wake of the Supreme Court's decision, NDP immigration critic Olivia Chow asked the federal standing committee on citizenship and immigration to vote in favour of allowing conscientious objectors who have refused or left American military service in Iraq to be allowed to stay in Canada.
"[31] On 6 December 2007, after some amendments to Chow's original motion, the parliamentary Standing Committee on Citizenship and Immigration adopted a motion stating: That the committee recommend ... that the government immediately implement a program to allow conscientious objectors and their immediate family members (partners and dependents), who have refused or left military service related to a war not sanctioned by the United Nations and do not have a criminal record, to apply for permanent resident status and remain in Canada; and that the government should immediately cease any removal or deportation actions that may have already commenced against such individuals.
[32]On 21 May 2008, US Iraq War resister Corey Glass, who had applied for refugee status 22 months earlier, was ordered deported and told that he must leave the country voluntarily by 12 June 2008.
The motion – which passed 137–110 – comes about a week before 25-year-old Corey Glass is supposed to leave Canada voluntarily after the former national guardsman was rejected as a refugee and ordered out of the country.
"[37] On 9 July 2008 the Toronto Star reported that Corey Glass "is [now] permitted to remain in Canada until the Federal Court makes a decision on ... cases for judicial review.
"[42] On 15 July 2008, after the Parliamentary recommendation had been in front of the minority Conservative government for a month and a half, Canada deported Iraq War resister Robin Long.
The day before Hinzman was to have been deported, "Immigration Minister, Diane Finley said ... the government would not intervene if the courts deny his ... request [to remain in Canada].
"[48] By the time she made this statement, it was public knowledge that the first deportee, Robin Long, had already been sentenced to fifteen months of imprisonment.
[49] Eleven days after Diane Finley's comments there was a nationally televised election debate in which the Conservative party leader Prime Minister Stephen Harper was pressed by Gilles Duceppe into answering a question about his position on the Iraq War: Harper said he erred in calling for Canada's participation in the 2003 U.S.-led invasion of Iraq.
[51] On 23 January 2009, Chris Teske was the first war resister to be forced out of Canada who had applied for legal refugee status and did not "fail to comply with bail conditions" as an earlier deportee Robin Long had.
"[56][57] Cornell was the first deported Iraq war resister to be charged, convicted and sentenced by the United States Military while Barack Obama was its Commander in Chief.
"[65] On 5 April 2011, in a similar situation, the Federal Court ruled in favor of Dean Walcott who was seeking a judicial review of his previous application to remain in Canada on humanitarian grounds.
After carefully considering written submissions, I ruled on November 12, 2004, for the reasons set out in my Interlocutory Reasons of that date, that Mr. Hinzman's allegation that US military action in Iraq is illegal because it is not authorized by the United Nations (UN) Charter, or UN Resolution is not relevant to the question of whether it is 'the type of military action' which 'is condemned by the international community, as contrary to basic rules of human conduct,' within the meaning of paragraph 171 of the Handbook on Procedures and Criteria for Determining Refugee Status4 (the Handbook) of the Office of the United Nations High Commissioner for Refugees (UNHCR).
Where, however, the type of military action, with which an individual does not wish to be associated, is condemned by the international community as contrary to basic rules of human conduct, punishment for desertion or draft-evasion could, in the light of all other requirements of the definition, in itself be regarded as persecution."
Source: Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees [1] Archived 24 March 2022 at the Wayback MachineAfter carefully considering written submissions, I ruled on November 12, 2004, for the reasons set out in my Interlocutory Reasons of that date, that Mr. Hinzman's allegation that US military action in Iraq is illegal because it is not authorized by the United Nations (UN) Charter, or UN Resolution is not relevant to the question of whether it is 'the type of military action' which 'is condemned by the international community, as contrary to basic rules of human conduct,' within the meaning of paragraph 171 of the Handbook on Procedures and Criteria for Determining Refugee Status4 (the Handbook) of the Office of the United Nations High Commissioner for Refugees (UNHCR).
Where, however, the type of military action, with which an individual does not wish to be associated, is condemned by the international community as contrary to basic rules of human conduct, punishment for desertion or draft-evasion could, in the light of all other requirements of the definition, in itself be regarded as persecution."
